New Look’s appeal dismissed

17 June 2010

London Fire Brigade has welcomed a decision by the Court of Appeal yesterday (16 June) which gives guidance to sentencing for serious breaches of fire safety legislation. The judgment which dismissed New Look’s appeal against sentence is the first decision made by the Court of Appeal under the Regulatory Reform (Fire Safety) Order 2005 (the “RRO”).

New Look pleaded guilty to two breaches of the RRO at Southwark Crown Court on 25 November 2009 following a prosecution by the London Fire Brigade. The company was fined £400,000 and ordered to pay £136,052 in costs by HHJ Rivlin QC, Recorder of Westminster. It is still the largest fine under the RRO.

Councillor Brian Coleman AM FRSA, Chairman of the London Fire and Emergency Planning Authority, said: ”I agree with the judges view that New Look’s performance on fire safety at their Oxford Street store was lamentable. Businesses like New Look are legally responsible for ensuring that their customers and employees are safe from fire.

“We welcome the guidance given in today’s judgement and it is clear that the courts do not have to see a death or serious injury to hit a company with a substantial fine.”

New Look argued that HHJ Rivlin, the sentencing judge, had not given sufficient weight to the fact that neither individually nor cumulatively were the breaches of duty linked to the cause of fire, nor did the fire cause injury or death. It was submitted that the sentencing judge had applied a higher presumed standard of seriousness to breaches of fire safety responsibilities than he would for breaches of duty towards employees and visitors under the Health and Safety at Work Act 1974. These submissions were not accepted.

The Court of Appeal agreed with the sentencing judge that a court does not have to wait until death or serious injury has occurred to express its displeasure at wholesale breaches of the defendant’s responsibilities under the Order.

After concluding that the sentencing judge made no error in principle or approach to the issues of seriousness and responsibility, the Court of Appeal recognised that the fines were severe but not manifestly excessive. The Court of Appeal shared the sentencing Judge’s view that New Look’s performance of its fire safety obligations in a large department store in the centre of London was “lamentable”.

Notes for editors

A copy of the full judgement is attached.

An important principal has been established. In RRO cases where the absence of death or serious injury is the result of pure chance and where the breaches are not causative of fire, the key question is the extent to which a failure to identify and address risk should be punished.

To quote from the Judgment “We accept that the sentencing judge was intending to impose a fine which reflected the seriousness of the offence in its creation of the risk to visitors. The magnitude of that risk was demonstrated, not by a death or serious injury, but by a fire in which death or serious injury was fortuitously avoided”.

New Look did not submit that the fines were disproportionate to the company’s means.

London Fire Brigade prosecuted New Look following a serious fire at their Oxford Street store on 26 April 2007. Thirty fire engines and around 150 firefighters were needed to tackle the blaze and crews remained at the scene for the next three days. The first call to the Brigade was not from a member of staff but from an office worker in an adjacent building. This delay meant that when crews arrived the fire had already developed and had broken through the second floor windows. Despite the building’s fire alarm sounding, it was reset on at least one occasion.

Over 450 people evacuated from the store and surrounding premises. A significant amount of Oxford Street was closed to traffic and the public which resulted in businesses being closed for a further two days after the blaze.

Following the fire, the Brigade carried out several fire safety inspections at the premises and found a substantial number of breaches of fire legislation. The most serious of these was an inadequate fire risk assessment which was found to have number failures, including no record of appropriate fire procedures including the correct one to adopt when the fire alarm activated.